Bothwell Nyakupinda v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/132/2020
HARARE, 5 MARCH, 2020
CASE NO. LC/H/150/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/132/2020

HARARE, 5 MARCH, 2020			     CASE NO. LC/H/150/19

AND 19 JUNE, 2020

In the matter between:

BOTHWELL NYAKUPINDA						APPELLANT

Versus

DELTA BEVERAGES (PVT) LTD 					RESPONDENT

Before The Honourable Kachambwa J;

For Appellant:				S.N. Muhambi, Trade Unionist

For Respondent:				K. Ncube, Legal Practitioners

KACHAMBWA J:

This is an opposed appeal against the decision of the Works Council of the respondent. The facts of the case are that the applicant was employed by the respondent. On the night of the 23rd August 2018 he was driving the company’s vehicle. On a straight stretch of the road he veered off the road and was involved in an accident. There was no other vehicle, animal or thing that was on the road. It was a one man accident. No witnesses.

The accident was reported to the police. The police carried out investigations. The appellant alleged that the motor vehicle suffered brake failure and the steering also locked, causing the accident. The government vehicle inspection department examined

the motor vehicle and made a report on the damage to the motor vehicle. There was no report touching on failure of brakes or locking of steering. There was no evidence anywhere in all reports or statements talking about those two aspects.

The police declined to prosecute on the understanding that they did not have evidence to rebut the defence of steering lock and brake failure. The employer convicted of negligence on the ground that,

1.	The vehicle did not have a history of mechanical failure.

2.	“the vehicle had no clean service history thereby dismissing any possible

mechanical failures as the possible cause of the accident”.

3.	The accident was caused by human error and negligence.

A penalty of dismissal was imposed.

All appeals at the work place failed. The last appeal was to the Works Council. While accepting that there was no direct evidence of negligence and no technical expert report ruling out the defence of mechanical failure, the Works Council nevertheless upheld the conviction and penalty. It dismissed the defence and reasoned that the motor had been recently serviced, it had no history of mechanical fault and none of the company fleet of 21 had had such failure in the nineteen years that they had been in operation. The appeal to this court is on four grounds that are that;

1.	The works council erred at law by dismissing the police report without evidence proving otherwise.

2.	The works council ignored a fundamental principle of law, that “he who alleges must prove” because, even though an allegation of negligent driving was made, it was never substantiated.

3.	The works council erred in blaming the Appellant for the occurrence of vis major, that is the unexpected mechanical fault.

4.	The works council ignored the fact that at the time of impact, the Appellant was travelling at a speed of 69km/hr, which is below the speed limit of the area (80km/hr).

Reading this file, from the Vehicle Care Committee minutes one cannot help but notice that the critical issue is the evidence on brakes and steering failure. Both parties were aware of it. The employer makes the point that such evidence is not on record and VID could have looked into it had they been asked to. But nobody did anything about it. Where does this lead us to?

There is no explanation as to why it is said that there was no decelaration when infact the speed reduced from 72km/h to 69km/h by the time of the impact. There is no categorical evidence anywhere to say that there was no brake failure. Appellant is adamant that there was. If there was how could he reduce speed by applying brakes? The appellant’s defence was known right from the beginning. It was therefore necessary to lead evidence to rebut it. He who alleges negligence must prove it. The employer could do so, by leading contrary circumstantial evidence or by direct evidence on the brakes and steering.

From the record, the report of the accident scene, one would have liked to hear on how a vehicle whose steering has locked can veer from right to left across the road. It would also have assisted if evidence was led from experts on whether such a vehicle can lock its steering while the engine is on. Linked to veering off the road is the question whether this was a straight part of the road and if straight would a locked vehicle not continue straight?

Was the vehicle going uphill or downhill? Would it naturally increase or reduce speed with the foot off the accelerators. Many questions are left unanswered.

The first disciplinary hearing was not deep enough to bring out the issues necessary to enable an informed decision to be made.

Let us consider the grounds of appeal individually in order to have the complete picture.

1.	The Police Report

The appellant argued that the works council erred in dismissing the police report without evidence proving otherwise. There are three sides to this. Firstly, the police report is not evidence. It is not an account of any evidence. It is their report which may also contain their opinion. What would be useful is their source documents/evidence. Secondly the opinion or their decision is not evidence. The court or any tribunal has to make its own opinion. Thirdly the standard of proof required in criminal cases is higher than in Labour/ civil cases. Therefore the refusal to prosecute by the police does not necessarily lead to an acquittal in Labour/civil cases.

In the result the police report is a none issue unless one picks up particular evidence from it and applies it. The way the issue is raised here makes it a none issue.

2.	Negligence was not proved

That there was no substantial evidence produced to warrant a conviction is basically what has been discussed so far in the Judgment. There was need for more.

3.	The Mechanical Fault

This point has already been discussed at length. Basically there was need for expert evidence in various aspects of it. The evidence of service of the motor vehicle does not rule out mechanical malfunction. Cars that are brand new suffer mechanical faults let alone those that had been on the road for over two hundred thousand (200) kilometres.

4.	Driving at 69km in an 80km/h zone

This is a none issue. One can still be negligent in other ways while driving within the speed limit of an area. What is relevant is how the accident occurred. Negligence is not determined by speed alone.

The speed of 69km per hour is relevant on the issue of declaration. There was need to explain why one would say there was no declaration when the speed reduced from 72km per hour to 69km per hour.

The Result

It appears that this is a proper case for the Court to interfere with the previous decision. There was no evidence to convict. A lot of evidence was overlooked. We are aware that an appeal court must be slow to interfere.

1.	Malimanji v CABS 2007(2) ZLR 77.

2.	Barros  Chimpondah 1999 91) ZLR 58 (S).

The issue has probably been put graphically in Toyota South Africa Motors (Pty) Ltd v Douglas Radebe & Others Case Number DAZ – 99

‘’An Appellate Court should not seek anxiously to discover reasons adverse to the conclusions of the trial Judge. No Judgment can ever be perfect and all-embracing, and it does not necessarily follow that because something has not been  mentioned, therefore it has not been considered”.

This is classic. This is how appeals are supposed to be anchored.

In the present case it appears that there was not enough evidence to convict. This is more so when one considers that there was no real effort to disprove the defence raised. Accordingly it would be in order to upset the verdict of guilty and the penalty of dismissal.

It is therefore ordered as follows;

1.	The appeal be and is hereby upheld.

2.	The conviction and dismissal of the appellant be and is hereby set aside.

3.	The Respondent be and is hereby ordered to reinstate the Appellant without loss of salary and benefits.

4.	If reinstatement is no longer possible the Respondent shall pay damages in lieu thereof the quantum of which may be agreed between the parties failing which agreement either party may approach the Court for quantification.

5.	Each party bears its costs.

Gill, Godlonton & Gerrans		-	Respondent’s Legal Practitioners